Jeffers v. Pease

Watson, J. The overruling of the motion to recommit the report was a matter of discretion, and not revisable in this court. Wilkinson’s Admr. v. Wilkinson, 61 Vt. 409, 17 Atl. 795. The record of the mortgage was constructive notice to the defendants that the land on which the logs purchased by them were cut, was encumbered by such a mortgage to secure the payment óf a note to the plaintiff, of the same date as the mortgage and for $156.51 with interest annually. The defendants were thereby put upon inquiry, and they were chargeable with [218] knowledge that the note and mortgage were overdue; for inquiry of the plaintiff would have disclosed that fact. Allen v. Gates, 73 Vt. 222, 50 Atl. 1092. The defendants manufactured the logs into lumber and converted it to their own use. That the mortgagee may maintain trover for wood or timber cut upon the mortgaged premises after condition broken, and converted, is well settled. Langdon v. Paul, 22 Vt. 205; Morey v. McGuire, 4 Vt. 327; Lull v. Matthews, 19 Vt. 322; Wright v. Lake, 30 Vt. 206. The plaintiff told the mortgagors, Stevens and Gallup, that he would account to them for the lumber taken off by Wyman ; but there was nothing said how or on what he would so account. The mortgagors gave no directions concerning the application. The plaintiff then held their unsecured note for $35.88, and he indorsed thereon $25, which he thought to be the value of the Wyman lumber. The referee found the value to be $40.85. After deducting therefrom the $25, the balance was applied by the County Court in full payment of the small note, and the rest upon the note secured by the mortgage. The small note represented a debt which, accrued earlier than that evidenced by the mortgage note. The plaintiff had a right to apply the $25 as he did, — Hicks’ Estate v. Blanchard, 60 Vt. 673, 15 Atl. 401, — and the application made by the court was i-n accordance with the -long settled rule stated in Atkins v. Atkins, 71 Vt. 422, 45 Atl. 1037. This being decisive of the case, there is no necessity for considering the other questions argued. ■ Judgment affirmed.